Article 3 medical condition cases: The Paposhvili test returns to plague the Court of Appeal

Following MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018), it has become increasingly  clear that there are now two applicable  tests in medical condition cases:

    • the test in article 3 medical cases as expounded in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, i.e. that, where an individual suffers from a serious medical condition, it would breach article 3 to remove him from the UK only where he would face an early and undignified death
    •  the test in article 3 medical cases as per the criteria in Paposhvili v Belgium [2017] Imm AR 867,ie the “Paposhvili test”.  The Court in MM(Malawi) observed that the effect of Paposhvili upon existing jurisprudence was considered in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64, at paragraph 38:   “So far as the [European Court of Human Rights] and the [ECHR] are concerned, the protection of article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where ‘substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’ (paragraph 183). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”

 

A previous blog post explores the Court of Appeal ‘s decision in AM (Zimbabwe): A very modest extension of the protection under Article 3 in medical cases: Court of Appeal rules upon meaning and effect of the guidance in Paposhvili

It is therefore possible to argue that a claimant satisfies the criteria in Paposhvili but not that in N.

 

The issues in MM(Malawi):

It was argued that MM met the Paposhvili criteria.

The Applicant, a national of Malawi had  been diagnosed  as HIV positive.  Her HIV infection was satisfactorily controlled with a combination of two drugs, Kaletra liquid and Truvada dispersible tablets. The Applicant had to take these drugs in liquid form because, as a result of an oesophageal stricture, she was unable to swallow solids. The drug treatment was chronic.

Having remained in the UK without leave, MM submitted a leave to remain application based on human rights grounds, which was subsequently refused. MM appealed to the First Tier Tribunal. The appeal was allowed on article 3 medical condition grounds however the Secretary of State applied to the Upper Tribunal for permission to appeal. Permission having been granted, the upper Tribunal re-made the decision dismissing MM’s appeal. The Applicant applied to the Court of Appeal for permission to appeal.

 

The Court of Appeal’s considerations:

The Court had regard to the following:

    • It was observed that although in in AM(Zimbabwe), the effect of Paposhvili was considered to represent a “very modest extension” of the article 3 protection in medical cases, it was nevertheless an extension.
    • It was reiterated that in Paposhvili, the European Court emphasised that, once there are serious doubts about whether the individual if removed might suffer treatment that breached the article 3 threshold, the onus of proof falls upon the state, and the state has a procedural duty to conduct enquiries and/or obtain specific assurances to ensure that there is no risk of such treatment on return.
    • The Court of Appeal observed that Upper Tribunal Judge in MM(Malawi) appeared to have equated the test in Paposhvili with that in N.
    • The Court also noted that it was argued on the Applicant’s behalf that given the inconclusive nature of the evidence, the Upper Tribunal Judge erred in placing the burden of proof where he did when he concluded that:It is still unclear what the position is regarding the availability of treatment in Malawi. The [First Applicant] has put forward evidence to suggest that liquid form treatment is not available but clearly some treatment is available. Given the paucity of evidence before the judge, it was in my view a material error of law for the judge to find as he did that to return the [First Applicant] to her country of origin would be to breach her rights under article 3. In my view no such breach of this country’s obligations will occur.”
    • There was an issue between the parties as to whether there was sufficient evidence before the First-tier Tribunal to make a determination as to the availability of appropriate treatment in ingestible form in Malawi; and, if there was not, what should be done.
    • The Applicant accepted that the test in N was not satisfied; but submitted that it was at least arguable that the test in Paposhvili was met, something which the Secretary of State accepted.
    • It was argued that the burden was consequently on the Secretary of State to show that appropriate therapy was available; and, far from the evidence showing that, there was firm evidence before the tribunal that appropriate drugs in liquid form are not available in Malawi. On the evidence before the tribunal only one conclusion could properly be drawn, i.e. that ARV drugs ingestible by the Applicant are not available in Malawi.
    • The Court of Appeal noted that on behalf of the Secretary of State, it was argued that although the Applicant did not meet the test in Paposhvili,  the contrary was arguable. It was accepted that it was arguable that return might breach the procedural obligation described in Paposhvili, because the tribunal had inadequate evidence before it as to whether, if removed to Malawi, the Applicant would be able to access ARV drugs she would be able to take; and, if not, the likely extent and intensity of the adverse effects and her suffering.
    • It was observed that the Secretary of State urged the Court to remit the matter to the tribunal so that findings of fact could be made to ensure that an informed decision could be made as to whether this was an appropriate case in which to give permission to appeal to the Supreme Court; and, if it was, that the Supreme Court would have a firm factual basis upon which to apply the relevant principles as they concluded them to be. In support of that contention, the Secretary of State made an application for an order that the Court receive new evidence in the form of a schedule of antiretroviral drugs that could be used in liquid form or crushed in suspension in liquid.

 

The Court of Appeal’s conclusions:

The Court of Appeal concluded that it would be pointless in practical terms to consider the case as suitable for the Supreme Court if, applying the correct burden of proof and test, the Secretary of State could show that, if the Applicant were removed to Malawi now, there would be no breach of article 3.

It was considered that there were two related issues that would need to be determined, namely:

  • the ingestible ARV drugs that would be available to the Applicant if she were removed to Malawi, and
  • on the basis of the available ingestible ARV drugs, the likely impact of the Applicant’s removal to Malawi on her health

The Court considered that those issues should be determined in the context of the appeal, prior to consideration of whether the case might be suitable for the grant of permission to appeal to the Supreme Court.

In the light of their experience in such matters, the Court of Appeal concluded that the issues should be remitted to the Upper Tribunal for determination.

 

Pending  test cases in the Court of Appeal on the divergence between N and Paposhvili:

The Court of Appeal decided to formally adjourn the application for permission to appeal to the court but noted that in terms of a return date, there were currently three other appeals in which the difference between the criteria in N and those in Paposhvili are in issue, that are listed for Tuesday 30 October 2018 with a time estimate of 2-3 days. It was proposed that the application for permission to appeal be provisionally listed with those appeals, on a rolled-up basis.  In the circumstances, it was considered that it would be helpful if the Upper Tribunal were able to determine the question out to them in time for that hearing.

 

Conclusion

It is likely that currently, there is a  significant number  of cases being stayed in the Courts  awaiting resolution of the pending test cases.

Whatever the Court of Appeal’s decision will be following the October 2018 hearings, ultimately what matters will be the outcome in these or other tests cases in the Supreme Court itself.

In the meantime therefore, whilst much judicial ink is being expended in the lower courts, it clearly is high time that the Supreme Court consider the divergence between N and Paposhvili,  much sooner rather than later.

 

 

 

 

Another Sala moment and common sense: Sufficient that former EEA national spouse works until the start of divorce proceedings

“Sala moment”:

Definition :- A brief or prolonged period of time over which the Upper Tribunal or Secretary of State get the law, particularly EEA law, horribly wrong.

 

The Secretary of State’s overdue concession:

It took the Secretary of State a very long time to accept the very obvious:  “….. that a third country national, in order to retain a right to reside in the UK in reliance on Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.”   This is what the Court of Appeal’s recently published judgment of last week in Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 (20 April 2018) reflects.

Setting aside issues of whether Regulation 10( 5) faithfully transposes the 2004  parent Directive, surely pure common sense dictates that not all divorces end with the parties still on friendly or even  speaking terms.  Obtaining documents such as payslips  and bank statement  from an ex-spouse in such circumstances is very difficult.   How then did the drafters of Regulation 10(5) risk losing touch with reality and manage to slip in onerous requirements, seemingly so without any inkling as to how difficult or near impossible they made it for some divorced non EEA family members to show that a former EEA national spouse was working, self-employed or was sufficient in the UK at the date of divorce?  Not only that, but the relevant offending provisions of Regulation 10(5) appear to have remained in their original format for well over a decade from when the 2006 regulations came into force: they even survived the hasty abandonment of the 2006 regulations, ushering in the litigation-provoking 2016 EEA Regulations on 1 February 2017.

 

The previous problem:

The problems faced by non- EEA family members who have divorced their EEA spouse are set out in a recent blog post, Non EEA family members and retained rights of residence : Pitfalls faced by divorced applicants and how to overcome them, which opens as follows:

“What usually proves problematic for non EEA family members seeking to assert their rights following divorce and upon application, is that having regard to the EEA Regulations and current accompanying Home Office Guidance, in addition to other evidence, they will be required to provide documentation relating to the EEA National Sponsors’ identity and nationality as well as evidence that the EEA national was exercising free movement rights at the time that the parties divorced. An affected applicant’s inability to provide the EEA national’s valid passport or nationality identity card or evidence of the EEA national’s employment at the relevant date of divorce might result in a refusal of that application……………

Documents required for retained rights of residence applications:

Relevant Home Office Guidance Free movement rights: retained rights of residence provides that the documents/evidence that must be provided by family members of European Economic Area (EEA) nationals who are applying for a document for a retained right of residence as per Regulation 10(5) is as follows:

  • of their identity and nationality through a:- valid EEA national ID card or passport issued by an EEA state if they are an EEA national; -valid passport if they are a non-EEA national
  • of the identity and nationality of the EEA national sponsor, which must be a valid EEA national identity card or passport issued by an EEA state
  • the EEA national was exercising free movement rights at the time the relationship was terminated or had permanent residence”

 

The Court of Appeal’s decision addresses the above problems, so far as they relate to provision of evidence of exercise of treaty rights by the ex EEA national spouse.

 

Couldn’t the Secretary of State have resolved issues much sooner?

The Court of Appeal  in Baigazieva observed that whether having regard to the revoked  2006 EEA Regulations or the current 2016 Regs, their judgement on the interpretation of Regulation 10(5) is to the same effect .

The Upper Tribunal decision in Sala occasioned a judicial moment when the Upper Tribunal tragically went off course: In Sala (EFMs: Right of Appeal) [2016] UKUT 411 ,the Upper Tribunal reached a conclusion that there was no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member.  This was by reference to  the 2006 EEA Regulations.  The affected  individual could challenge the decision of the Secretary of State by way of Judicial Review. About a year later, the Court of Appeal stepped in so as to bring infuse some sense, at least where the 2006 Regulations were concerned. The  Court of Appeal in Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755 (09 November 2017),  overturned Sala concluding that, the Secretary of State’s decision to refuse Mr Khan a residence card, was an EEA decision and could therefore be appealed in the ordinary way to the First Tier Tribunal. The Court of Appeal judgment in Khan however does not deal with the  2016 Regulations.  The new 2016  Regulations make it clear that  an EEA decision does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member).

The Upper Tribunal decision in Sala was short-lived, however the Secretary of State has time and time again published Policy Guidance seeking to uphold the burdensome evidential requirements of Regulation 10(5) requiring that an applicant show the EEA national was exercising free movement rights at the time the relationship was terminated, ie when the decree absolute was granted. In turn, Tribunal Judges have over the years labored, it appears now wrongly, to interpret the Regulation as drafted, however with negative results for Appellants unable to provide the specified documentation required to establish a right of residence following divorce.

In Baigazieva, the Secretary of State acknowledged that the issue regarding the correct interpretation of Regulation 10(5) had arisen in several proceedings in recent years without being definitively resolved. Surely, however the Secretary of State had it in her power to properly reflect and amend her Policy Guidance prior to this case reaching the Court of Appeal? Just how many application or appeals have failed over the years simply on the basis of  the provisions of Regulation 10(5) as currently drafted along with its accompanying policy guidance?

As noted by the Court of Appeal in Baigazieva, the parties had agreed a consent order. The Secretary of State had already indicated in a letter dated 26 February 2018 that he did not wish to contest the appeal. The Court of Appeal in turn invited the Secretary of State to file a brief position statement explaining why he was willing to concede the appeal.  Ultimately, the Secretary of State appears to have had any “ easy -ride”: all he did was provide long-winded submissions seeking to deftly manoeuvre his way into eventually justifying the previously made concession. Whatever was put forward in submissions on behalf of the Secretary of State, having regard however to the 2004 Parent Directive, it is arguable that Regulation10(5) does not faithfully transpose Article 13(2) of the Directive.

A relevant question however is this: would the Secretary of State have made clear and public his position on Regulation 10(5), ie via his policy guidance, had it not been for the Court of Appeal’s express invitation and the resultant decision to publish its judgement?

Since both the Secretary of State and Court of Appeal agreed that it is not necessary for the court to make a further reference to the CJEU for a preliminary ruling, it should have been obvious, much earlier, at some point that relevant Home Office policy Guidance needed to be amended to remove the requirement that evidence of exercise of treaty rights by the ex EEA spouse be shown until the divorce i.e when the decree absolute was issued.

 

What the Secretary of State should do next:

Following the Court of Appeal’s judgment, the Secretary of State is expected to undertake the following action:

to reflect the correct position as per the concession, “that a third country national, in order to retain a right to reside in the UK in reliance on Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced”.

Is the door wide open for UK born “Zimbabwean” children aged at least 5years to obtain registration as British citizens relying on MK?

There is a considerable number of undocumented Zimbabwean nationals who were born in Zimbabwe, and following arrival in the UK, now have children of their own born here, aged under 18years.   Some of these children may not yet have accrued the necessary continuous residence in the UK required to enable them to place reliance upon the 7year Rule as a basis of application for leave to remain.   In such circumstances, fulfilment of the 10years continuous residence in the UK required to enable an application for registration as a British citizen would accordingly be inapplicable.

On the basis of the principles flowing from MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1365 (Admin, a case which involved a UK born child of overstaying Indian parents, is it possible to similarly argue that a UK born child falling within the above scenario is stateless as having no nationality and that ability to acquire a nationality is irrelevant? Can it be put forward in an application for registration as a British citizen that in such circumstances, the child has no other nationality, and is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and is entitled to registration as a British citizen?  Where the child’s birth has not been registered in accordance with Zimbabwean law and procedure, is that child entitled to British Citizenship on the basis that he or she is not Zimbabwean?  Can it be argued that the child was or is ‘stateless’ at any time when he/she did or does not in fact have Zimbabwean nationality?

 

THE BENEFITS OF OBTAINING REGISTRATION RELYING ON MK

Children who are born in the UK and are stateless can rely upon the MK judgement so as to seek to obtain registration as British citizens.

Undocumented parents of such children can subsequently apply for leave to remain having regard to Article 8 of the ECHR on the basis of family life with a British child. Alternatively, where appropriate, a Zambrano application can be relied upon so as to obtain a derivative right of residence in the UK.

 

RELEVANT UK LAW

A person is stateless if he or she is not regarded by the authorities of any country as a citizen or national of that country.

An individual who was born in the UK or a British overseas territory can register as a British citizen under paragraph 3 of schedule 2 of British Nationality Act 1981 if:

  • they were born on or after 1 January 198
  • they were born stateless
  • they have remained stateless
  • on the date of application, they are under the age of 22
  • they were in the UK or a British overseas territory at the beginning of the period of 5 years ending with the date of application- in that 5 year period: -they were not absent from both the UK and the British overseas territories for more than 450 days

An individual who meets these requirements is entitled to register as:

  • a British citizen, if the number of days spent in the UK in the 5 year period is more than the number of days spent in the British overseas territories
  • a British overseas territories citizen (BOTC) in any other case.

The applicant must have been in the UK or a British overseas territory at the beginning of the period of 5 years ending with the date of application. The date of application is the date it is received by the appropriate British Government representative – e.g. if the application were to be received on 30 September 2015, the 5 year qualifying period would be from 1 October 2010 to 30 September 2015.

 

CASE OF MK

Facts in summary:

The issue, was whether the Claimant child (“C”) who was born in the United Kingdom on 14 November 2010 to overstayer parents of Indian nationality residing in the UK, ‘is and always has been stateless’  for the purposes of paragraph 3 of Schedule 2 to the 1981 Act. That depended on the meaning of ‘stateless’ in the Act, which is a matter of law. It also depended on the question whether C is (or ever has been) a national of India. That in turn depended wholly or largely on Indian law, which was a matter of fact and needed to be proved by evidence.

On 8 March 2016, C submitted an application for registration as a British Citizen under paragraph 3 of Schedule 2 to the 1981 Act. On 18 May 2016 the Secretary of State refused the application. Judicial review proceedings were begun on 17 August 2016.

 

Relevant Indian Law:

As regards the relevant Indian law, the Court found as follows:

  • Indian citizenship is acquired by descent, and a child born outside India after 1992 is a citizen of India by descent if either of the child’s parents was at the time of his birth a citizen of India other than by descent.
  • If, however, the birth was outside India on or after 3 December 2004 (the date of commencement of the Citizenship (Amendment) Act 2003 (India)) the child is not a citizen unless the birth is registered at an Indian consulate ‘in such form and in such manner as may be prescribed’.
  • Additionally, if the registration is after the child’s first birthday it needs ‘the permission of the Central Government’. In either case the parents have to declare, also ‘in such form and in such manner as may be prescribed’, that the child does not hold the passport of any other country. There is no suggestion that citizenship is granted from the date of registration: it is obtained by the birth, provided that the birth is registered.
  • Guidance issued by the Indian Government provides for the use of a form for the process of registration, and an ‘undertaking in writing by the parents’ that the child does not hold the passport of another country. 

What the parents could not provide:

  • Evidence was adduced that the Indian consulates in the United Kingdom would require the production of documentation that C’s parents did not have, for example the father’s passport and their marriage certificate. Production of an Indian passport was required only for an Indian passport holder: The father claimed not to be one, because his passport had expired. It was observed however by the Court that there did not seem to be any good reason why he should not renew it if he needed to.
  • The Court noted that there were possibilities for applying for registration as a citizen where a person born outside India comes to live in India while still a minor, and there are provisions for the backdating (if necessary) of the Central government permission. The Court stated there was no evidence before it of any actual difficulty in registering a child whom the parents wanted to register.
  • The Court further stated that Indian law and practice as revealed from the evidence was that a child born to an Indian parent outside India has a right to Indian citizenship, which, if the child was born on or after 3 December 2004 is obtained by registration at the Indian consulate after fulfilling appropriate administrative procedures directed to identification of the child and the parents and their nationality. The child’s age has no impact on the process.

 

Meaning and effect of paragraph 3 of Schedule 2 to the 1981 Act:

Having considered the relevant statutory provisions and caselaw, the Court in MK concluded as follows:

  • For the purposes of the statutory provisions in issue, a person is stateless if he has no nationality. Ability to acquire a nationality is irrelevant for these purposes.
  • A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended.
  • If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen. If, therefore, C’s birth had on the date of the decision under challenge not been registered, she is entitled to British Citizenship.
  • C was entitled to registration as a British citizen on proof that she meets the requirements of paragraph 3 of Schedule 2 to the British Nationality Act 1981. For these purposes she was or is ‘stateless’ at any time when she did or does not in fact have Indian nationality. The Secretary of State is entitled to require her to prove the relevant facts, but is not entitled to impose requirements that cannot, or practically cannot, be met.

 

Detailed analysis of MK can be found in a previous blog post:

 

RELEVANT ZIMBABWE LAW AT A GLANCE

“Citizenship by birth

You are a citizen by birth if when you were born in Zimbabwe one of your parents was a Zimbabwean citizen or any of your grandparents was a Zimbabwean citizen by birth or descent.

You are also a citizen by birth even if you were born outside Zimbabwe if at the time of birth one of your parents was a Zimbabwean citizen and was ordinarily resident in Zimbabwe. If you have your child in the Diaspora and you can show that you or the other parent were ordinarily resident in Zimbabwe at the time of birth, then your child can be a Zimbabwean citizen by birth. There are certain advantages to being a citizen by birth, for example, the protection of dual citizenship.

……………………..

Citizenship by descent

A person is a citizen by descent if he or she was born outside Zimbabwe and at least one of his or her parents or at least one of his or her grandparents was a Zimbabwean citizen by birth or descent.

If one of his or her parents was a Zimbabwean by registration and the person is born outside Zimbabwe, he will also be a citizen by descent.

However, in all cases, the birth of the child must be registered in accordance with the laws of Zimbabwe. In other words, you must get a Zimbabwean birth certificate. Most children born in the Diaspora are likely to fall into this category – as citizens by descent”-Manual on citizenship rights in Zimbabwe, 21 July 2016, https://www.bigsr.co.uk/single-post/2016/07/21/Manual-on-citizenship-rights-in-Zimbabwe

 

Zimbabwe- Child Registration Requirements:

Information on the Embassy of Zimbabwe to Britain and Ireland website states, http://www.zimlondon.gov.zw/index.php/consular-services/child-registration-requirements:

Child registration requirements.

 The following documents are required for Child Registration:

  • The child’s UK/Irish long Birth Certificate;
  • Both parents’ long Birth Certificates;
  • Both parents’ Zimbabwean National Registration Cards (IDs) (Paper type, metal type or plastic type);
  • Both parents’ Passports;
  • Marriage Certificate (if applicable) and
  • A fee of £25.00 (Twenty-Five Pounds Sterling) which should be paid in Cash or Postal Orders.

Also bring along photocopies of every original documents which are listed above. (For the old-type Passports, photocopy pages 1 to 5 and/or the last page for the new-type Passports).

When the forms have duly been completed, signed and processed, it is the applicant’s responsibility to send these to the Registrar General’s Office, Private Bag 7734, Causeway, Harare, for child registration and issuance of the Zimbabwean long Birth Certificate.

 Single parents can process applications by submitting:

  1. The child’s UK/Irish long birth certificate
  2. The parent’s long birth certificate.
  3. The parent’s Zimbabwean National Identity Card(Paper type, metal type or plastic type).
  4. The parent’s passport”,

 

Zimbabwe -Requirements for application for a Zimbabwean passport:

Information on the Embassy of Zimbabwe to Britain and Ireland website states, http://www.zimlondon.gov.zw/index.php/consular-services/requirements-for-passport-application:

Requirements for application for a Zimbabwean passport

Please be advised that applicants need to COME in person and submit your application form because applicants need to have their fingerprints taken at the Embassy.

The following documents are required when submitting the application form:

  • Original and photocopy of Zimbabwean Long Birth Certificate;
  • Original and photocopy of National  Identity Card (ID)(Paper type, metal type or plastic type), for those who turn 16. Kindly be advise that all Zimbabwean children who have turned 16 years of age are required to obtain Zimbabwe National Registration Cards (IDs), by law, before they can apply for Zimbabwe Passports. The registration cards can only be obtained by going to Zimbabwe to make the application in person.
  • Marriage Certificate and photocopy, (for married women – ID should be in married name);
  • Proof of Citizenship, if claiming citizenship in Zimbabwe by Descent, Registration or Naturalisation;
  • Old/Expired Passport plus photocopy of bio-data page for new type passport or pages 1 to 5 for old-type Passport or letter from Home Office;
  • A fee of £65 in Cash or Postal Order

Children below 18 years should be accompanied by either parents or Legal Guardian, with I.D card or valid Passport to sign Section 5 of the Passport form;

Parents and Legal Guardians of children below 18 years whose dependents are not resident in the United Kingdom need to sign Section 5 at the Embassy and send it to their dependents.

  • 2 x colour photographs of 4.5cm long by 3.5cm wide dimensions, taken from a studio with a WHITE background and applicants should wear DARK coloured upper clothes.
  • Consular Office is open between 09:00am and 12:30pm, Monday to Friday.

INFORMATION REGARDING PROCESSING OF PASSPORT APPLICATIONS

All passport applicants please take note of the following information:

 

Processing of passport application, including payment of processing fee is done in Zimbabwe. This procedure can either be done by the applicant when he/she travels to Zimbabwe or by a third party nominee residing in Zimbabwe who is a relative of the applicant.

It is the responsibility of the applicant to send the application form to Zimbabwe for processing.

Passport application forms can be processed at any nearest Passport Office in Zimbabwe. NB: all emergency passports (one day) are processed in Harare.

 

Passport processing fees to be paid at the Passport Office in Zimbabwe are:

US$250 for a passport that is processed in six weeks

US$315 for a passport that is processed in two weeks

US$50 for a passport that is processed in one day

A complete passport application form to be sent to Zimbabwe   should consist of the following documents:

  • the stamped passport application form (P1)
  • certified copies of birth certificate, I.D. and relevant pages of the old passport; including the page affixed the visa sticker/ proof of residence
  • stamped passport size photos
  • original receipt issued by the Embassy (retain a copy)
  • the letter authorising your nominee to submit the application and also collect the new passport once it is issued.

Once the new passport is ready for collection, the applicant is required to tender the old passport to the Embassy for cancellation and then fax copies of the cancelled passport to the nominee to enable him/her to collect the new passport”.

 

WHETHER THE MK PRINCIPLES POTENTIALLY APPLY TO ZIMBABWEAN CLAIMANTS

Having regard to the above, the parent(s) might not be able to provide the documentation that is required by the Zimbabwean authorities in order to enable the child’s registration and issuance of the Zimbabwean long Birth Certificate.

The parent(s) may not have brought their long Zimbabwean birth certificate to the UK when they left Zimbabwe nor their Zimbabwean national Registration Card. The Registration card might long have been misplaced. This registration card however can only be obtained by returning to Zimbabwe to make the application in person. The Home Office is known to retain passports for several years following unsuccessful applications: it is not apparent whether upon request, the Home Office would be in a position to release and return such a passport to the parent purely for the purposes of enabling the parent to present it to the Zimbabwean authorities in the circumstances in issue.

In MK, the Court made it clear that there was no evidence in that case from anybody being put forward as an expert in Indian nationality law. What the Court had were witness statements submitted by the Secretary of State setting out the experience of certain of her officers and the result of enquiries they had made. It was observed that crucial features of the statements were not the subject of any contrary evidence. The Court stated that it was entitled to take them into account, not as a comprehensive statement of the relevant Indian law, but as evidence of its operation as observed by the makers of the statements.

As regards Zimbabwean cases, it may be relevant to actually engage with an expert on Zimbabwean nationality law and obtain a report in order to buttress the arguments intended to be made in support of the application. That might determine whether it can be argued with confidence that the MK principles apply to Zimbabwean cases.

What is clear however is that the type of evidence that is required in these types of applications is set out below as required by the relevant Guidance. It may be that submission of a British registration application with the relevant required evidence, as well as accompanying submissions may suffice to enable forwarding of an application for consideration.

 

RELEVANT HOME OFFICE GUIDANCE

 

The applicable guidance is:

 

EVIDENCE REQUIRED TO ESTABLISH ENTITLEMENT

Applications under paragraphs 3 of schedule 2 of the British Nationality Act 1981 must be supported by the following evidence:

  • the applicant’s birth certificate showing parents details
  • that the applicant has been stateless from birth. For example, a letter from the authorities in the country in which he/she was born, stating that he/she is not, and never has been, a citizen of that country.
  • If either of the applicant’s parents holds a non-British nationality, a letter from the authorities of the country concerned, saying that the applicant has never held that country’s citizenship or nationality.
  • If the applicant has lived for a period of 5 years or more outside the United Kingdom, outside the territory where they were born and outside any country of which either of their parents is a citizen or national, a letter from the authorities of that country of residence saying the applicant has never held that country’s citizenship or nationality.
  • If the applicant’s parents hold different non-British citizenships or nationalities, or either of them holds more than one citizenship or nationality, the applicant will need to get letters from all of the countries concerned. Similarly, if the applicant has resided for 5 years or more in more than one country, they will need to get letters of confirmation from all of the countries concerned.
  • that the applicant has been in the United Kingdom or a British overseas territory for a period of 5 years entered in Section 2 of the application form. The applicant will be required to send any passports (including stateless persons travel documents) which cover the whole of the qualifying period. If the applicant cannot do this, they need to explain why and send as much as they can of the following, as applicable:
  1. letters from the applicant’s employers during the qualifying period
  2. letters from schools or other educational establishments which were attended during the qualifying period
  3. a letter from the HM Revenue & Customs National Insurance Contributions Office showing that the applicant has paid National Insurance contributions during the qualifying period, or an equivalent letter in the case of a British overseas territory
  4. P60 forms or a letter from the HM Revenue & Customs (or the equivalent in a British overseas territory) showing that the applicant has paid tax during the qualifying period
  5. any other documents which show that the applicant lived in the United Kingdom or the British overseas territories during the qualifying period.

The Home Office would expect evidence to be provided that a child is not a national of another country, in order to establish that the statutory requirements are met. If the parents have attempted to obtain that information, but claim they cannot obtain it, the Home Office caseworker must ask for the following evidence:

  • that they have contacted the authorities of the other country to request confirmation that the child is not a citizen, such as a copy of the request, and evidence that they emailed or posted it, or made an appointment at the Embassy or High Commission
  • a copy of the authorities’ response
  • that they have complied with the requirements of that country, such as completing any specified form and providing any required documents

 

Where the parents have complied with the relevant requirements, but the authorities of the other country will not provide that information, the Home Office caseworker must consider the application on the basis of all the information available.

Applications under paragraph 3 of schedule 2 must also be supported by passports and other documents to establish:

  • the persons 5 years residence in the UK or a British overseas territory prior to their application
  • that the person was not absent from the UK or the British territories for more than 450 days for the 5 year qualifying period

 

Discretion regarding absences

Under paragraph 6 of schedule 2 of the British Nationality Act 1981, the Home Office decision maker can exercise discretion to allow absences of:

  • more than 450 days if the application is made under paragraph 3 of schedule 2

 

The decision maker must normally waive excess absences under these provisions where:

  • they are the result of circumstances beyond the person’s control such as serious illness or an accident which prevented them from returning to the UK
  • they amount to no more than 30 days
  • refusal would seriously disadvantage the person

 

Being stateless on its own is not enough for discretion to apply

The decision maker must not waive excess absences where:

  • the individual or their parents were unaware of the requirements
  • the absences were entirely voluntary
  • a refusal would cause inconvenience, such as difficulty travelling, and not serious disadvantage

 

The Application Form for registration:

The relevant application form for registration  as a British citizen as well as the accompanying Guidance is as follows:

 

Once the applicant has completed and signed the application form and enclosed the documents, they must arrange to pay the correct fee. If they are paying by debit/credit card they should complete the payment slip attached to the fee leaflet Fees for citizenship applications – GOV.UK

If the applicant is in England, Wales, Scotland or Northern Ireland they should send the application form with the fee and supporting documents to :

Department 1 UKVI

The Capital

New Hall Place

Liverpool L3 9PP

 

 

GUEST BLOG by Counsel, Becket Bedford: Ahmed, JK v Sweden and the burden and standard of proof

In the Court of Appeal, verification by the State of documentary or other evidence is sometimes, but rarely, required to assist an applicant to establish his claim: see MA (Bangladesh) v SSHD [2016] EWCA Civ 175 at §29; PJ (Sri Lanka) v SSHD [2015] 1 WLR 1322 at §29, explaining and confirming the Tribunal decisions in Ahmed v SSHD [2002] Imm AR 318; MJ v SSHD [2013] Imm AR 799; and NA v SSHD [2014] UKUT 205.

 

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Partners of British citizens with unlawful or precarious immigration status: Appreciating the stringent evaluative mechanism after Agyarko and TZ (Pakistan)

“In Agyarko the Supreme Court made clear that the scheme established by the Rules and the Secretary of State’s Instructions are lawful and compatible with article 8. Accordingly, the Secretary of State is entitled to apply a test of insurmountable obstacles to the relocation of the family within the Rules and a test of exceptional circumstances as described outside the Rules………Despite the clarity of the conclusions in Agyarko, the appellants seek to persuade the court that there remain important issues relating to how the principles in Agyarko should be applied. Before embarking on a short analysis of those issues, I say at the outset that I am wholly unconvinced that any gloss is needed on the principles described by Lord Reed. I shall at the conclusion of this judgment set out an evaluative mechanism that should be adopted by First-tier tribunals that is consistent with the decisions of the Supreme Court, follows existing good practice across jurisdictions and meets the failure to adequately describe the evaluative judgment undertaken in the reasoning in these cases, despite the fact that the ultimate decisions were and are correct”, said the Court of Appeal in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 (17 May 2018)

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Tribunal’s jurisdiction: Appreciating when and how to tactfully raise a New Matter in an appeal

Nothing deflates an Appellant more than leaving an appeal venue without their substantive appeal having been heard by a Tribunal Judge.  Such a situation can arise where a Tribunal Judge cannot consider a raised  new matter not previously considered by the Home Office unless the Secretary of State has given consent for the Tribunal to do so.

 

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